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HomeMy WebLinkAbout89-526 HughesEdward J. Hughes, Esquire Suite 905 One Montgomery Plaza Norristown, PA 19401 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 14, 1989 89 -526 Re: Former Public Employee; Section 3(e), DER, Environmental Chemist I Dear Mr. Hughes: This responds to your letter of February 24, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Department of Environmental Resources. Facts: You state that you represent Theodore O. Geary and the Empire Sanitary Landfill, Inc., which holds Solid Waste Disposal Permit No. 100933. You then advise that Mr. Geary is a Regional Chemist employed by the Pennsylvania Department of Environmental Resources, hereinafter DER, Bureau of Waste Management, who worked initially out of the DER's Williamsport Office but recently was assigned to the Wilkes -Barre Office. The Personnel office of DER advised that the above transfer occurred on or about April 27, 1983. After stating that Mr. Geary gave notice to terminate his employment as of March 1, 1989, you state that he will be employed by Empire as a Residual and Special Waste Coordinator. You then advise that his duties with Empire, which has a landfill located in Lackawanna County, will consist of coordinating Empire's Residual and Special Handling Waste Program which in turn would entail meeting with clients, taking samples and preparing necessary paper work that would have to be submitted to DER in order to ensure compliance with the Pennsylvania Solid Waste Laws, including obtaining permit amendments for residual waste generators. You state that Mr. Geary when he was employed by DER did review certain Module 1 Permit Amendment Applications submitted by Empire on behalf of waste generators. You conclude by requesting advice as to Mr. Edward J. Hughes, Esquire April 14, 1989 Page 2 Geary's duties under the Ethics Act concerning the restrictions imposed upon him as to his employment with Empire following his termination with DER. From his job description which is incorporated herein by reference, the following duties and responsibilities are set forth: "An employee in this class performs a variety of duties in the Department of Environmental Resources involving the regulation of industrial and municipal facilities to ensure compliance with Federal and Commonwealth rules and regulations governing the disposal, storage, treatment, discharge, and transportation of hazardous waste, industrial waste, and toxic material. Work involves developing, amending, and interpreting rules, regulations, policies, and procedures governing hazardous wastes, industrial wastes, and toxic materials. Work involves providing technical advice to Departmental and industry officials involving assessments of the potential risks of toxic, hazardous, and industrial wastes. Work also involves evaluating proposals for the disposal of industrial- residue and hazardous wastes with respect to chemical implications, evaluating the risk potential of particular wastes b ased on chemical constituents and their acute and chronic toxicities, bio- accumulation pot tial, and toxic or hazardous impact on treatment sy tems. Work includes training field personnel and county health personnel on proper sampling techniques and testing procedures, conducting inspections of high risk treatment plants, water systems, and streams for contamination; and developing sampling methods and procedures for hazardous wastes monitoring systems. Work also includes providing technical assistance to the Bureau of Laboratories on the analysis of non - routine organic substances and reviewing industry plans for proposed hazardous, toxic, or industrial waste storage, treatment, or disposal facilities for compliance with Federal and Commonwealth regulations. Work also includes providing information to facility operators, municipal officials, and the public on Departmental programs, functions, rules, regulations, policies, and procedures; reviewing proposed legislation for possible impact on the hazardous, toxic, or industrial waste programs and recommending whether management should support or oppose the legislation; and serving as an expert witness for the Department. Work is assigned in the form of goals, Edward J. Hughes, Esquire April 14, 1989 Page 3 objectives, and priorities, and the employee exercises considerable freedom in planning, scheduling, and completing assignments. Work is reviewed upon completion by a professional supervisor through reports and conferences for attainment of program goals and objectives, completeness, and overall quality." Discussion: As a Environmental Chemist for DER, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. S402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of this employment, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. §403. Initially, to answer your request the "governmental body" with which you were associated while working DER must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, Opinion 79- 010. See also Kury v. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been the Wilkes -Barre Office of the Bureau of Waste Management, hereinafter Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of Edward J. Hughes, Esquire April 14, 1989 Page 4 your employment would be the Bureau. Therefore, within the first year after you would leave DER, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from DER. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, Opinion 83 -014; Zwikl, Opinion 85 -004. In respect to the one year representation the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1 Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employee. 51 Pa. Code 51.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances bodies with which you have been including, but not limited to, contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by DER; before the governmental body or associated, (that is the Bureau), negotiations or renegotiations on Edward J. Hughes, Esquire April 14, 1989 Page 5 4. Lobbying, that is representing the interests of any person or employer before the Bureau in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. The Commission has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Bureau, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave DER, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Bureau, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau to secure information which is available to the general public. See Cutt, Opinion 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Bureau your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, Opinion 80 -056 and Beaser, Advice 81 -538. Additionally, it is noted that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). Edward J. Hughes, Esquire April 14, 1989 Page 6 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Environmental Chemist I, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with DER, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is the Bureau. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Vincent J. Dopko, General Counsel